Customers May be able to Discriminate, But that Doesn’t Mean Your Business Can and Other Misconceptions

Last week this blog reported about a recent lawsuit filed by an African-American nurse against her employer, Hurley Medical Center in Flint, Michigan. The lawsuit claimed the defendant hospital agreed to a man’s request that no African-Americans care for his newborn baby and went so fare as to even post a sign to this effect.

For any number of reasons these allegations – assuming them to be true – revealed the significant legal and evidentiary issues the hospital faced in responding to the employment discrimination lawsuit. And presumably that trouble contributed to a quick settlement of the case, which was announced on February 22, 2012 (See Dominic Adam’s reporting on this settlement). A second lawsuit (PDF), however, was filed by another African-American nurse and this case is still pending.

Regardless of what happens with this second suit or the reasons the first settled, both provide a number of points that employers and employees should understand when it comes to discrimination based on customer preferences.

This lawsuit also revealed a significant amount of frustration and misunderstanding among people following this story. Consider the following comments posted on the Detroit Free Press website (all comments are provided verbatim):

this is rediculous !!! the racist is a horrible person. but so what. he is paying for a service.he can request anything he wants. how is the nurse at a loss for anything ?? THERE WAS NONE !! this is truely unbelievable !!!! B. Holtslander

She was not allowed to care for a specific child. Did she lose hours? NO. Did she lose pay? NO While the father’s request was dispicable, what was the real harm to this nurse? D. Markham

As much as I disagree with the father’s racist views on African-Americans, they are his views. In health care, we are taught to put aside our beliefs and respect other people’s culture and views, and not to judge. In that sense, the Hospital did the right thing. They respected the beliefs and culture of the father, and followed his wishes. As weird as that sounds, it was the right thing to do. A nurse of 25 years should be insulted by the racist father, but she should also realize that part of the job is respecting the culture of others, as weird as that feels with regards to a racist. R. Burchett

Being a racist aside, he probally does have the right to decide who cares for his child. No win situation. Get sued by a nurse who could have moved on and cared for another patient or get sued by the father. C. Cunningham

First, the Hurley Hospital Lawsuit illustrates the difficult situation employers are in when a customer makes a request that would constitute unlawful discrimination under Michigan or federal law. Specifically, businesses need to keep their customers happy. They also need to comply with state and federal anti-discrimination laws. Sometimes achieving both goals is a management challenge, because customers may not always have respectable beliefs or be model citizens.

And while the Hurley litigation involved race, customer preference issues can arise under other circumstances. For instance, imagine a company’s major client representative is a man who likes to be entertained at clubs with “strip” in their title. It would be discriminatory to remove a female from this account under the belief that a “guy” would be more suited to take the male customer representative out to such clubs.

The second point to realize is that employers cannot make discriminatory decisions motivated by considerations such as race, religion, or gender based upon a customer’s preference under either Michigan or federal anti-discrimination laws.

Third, while employers have obligations under the preceding laws, a person has the the right to their beliefs and opinions, even if those beliefs and opinions are widely considered to be racist, objectionable, or otherwise discriminatory. But going back to the preceding point, an employer subject to state or federal discrimination laws cannot facilitate the carrying out of those opinions that would unlawfully discriminate against individuals.

Fourth, both Michigan and federal anti-discrimination laws recognize that in certain limited circumstances, an employer may have a legitimate reason to seek an employee of a particular gender or religion, even though such a preference would ordinarily be illegal. These are called bona fide occupational qualifications (“BFOQ”). A critical determination in assessing the appropriateness of a BFOQ is whether a customer preference involves fundamental rights such as privacy.

Examples of such privacy issues and when an employer may legitimately make a BFOQ when it comes to customer preference issues include a patient objecting to being bathed by caregivers of the opposite sex, janitors assigned to clean restrooms that cannot be closed during cleaning, or security guards assigned to perform strip searches.

But employers must understand that under both Michigan and federal anti-discrimination laws, racially motivated decisions are not going to be considered a BFOQ.

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